By elevating Saurabh Kirpal as Judge of the Delhi High Court, the Supreme Court Collegium has bended to reality on LGBTQI rights, writes V.VENKATESAN.
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THE Supreme Court's three-member Collegium, comprising the Chief Justice of India (CJI) N.V. Ramana, and Justices U.U. Lalit and A.M. Khanwilkar, on Monday approved the proposal for the elevation of senior advocate Saurabh Kirpal as Judge in the Delhi High Court, following its meeting on November 11. The Collegium has made history because it is the first time that a person – who was discriminated against earlier because of his sexual orientation as a gay person – has been recommended for the post of a judge in a high court.
The Supreme Court Collegium considered Kirpal's elevation four times earlier, but was unable to reach a conclusion, because the Centre was not in favour. Therefore, the Collegium deferred its decision to elevate him first on September 4, 2018, then on January 16, 2019, then again on April 1, 2019, and lastly on March 2 this year. The Delhi High Court Collegium had recommended Kirpal for appointment as a permanent judge of the High Court in October 2017, and since then it has been pending with the Supreme Court's Collegium.
Kirpal, in an interview to The Print, had said that he believed his sexual orientation was probably the reason why the Supreme Court collegium has not taken a decision on his elevation. He had said that he agreed to be nominated as a Judge by the Delhi High Court Collegium on April 22, 2017, four days after he turned 45.
The previous CJI, S.A. Bobde, had reportedly written to the previous Union Law Minister, Ravi Shankar Prasad, giving him "four weeks to clear the air" about whether the matter was pending because of Kirpal's sexual orientation.
Chief Justice Bobde's letter surprised observers because the ball was clearly in the court of the Supreme Court's Collegium when it considered his elevation on March 2, as it had considered his elevation three times earlier and deferred it on its own, without stating any reasons.
Chief Justice Bobde, however, retired on April 23 this year, without clearing the air himself.
“Kirpal, in an interview, had said that he believed his sexual orientation was probably the reason why the Supreme Court collegium has not taken a decision on his elevation.
As the Supreme Court's Collegium had considered Kirpal's elevation three times earlier (before March 2, when it was considered and deferred last), it could be safely presumed that the then law minister had forwarded the complete material – which includes the High Court Collegium's recommendation and "such other reports" as may be available to the government – to the CJI for his advice. It is, however, possible that the Collegium since 2018 had been tacitly sounded about the Centre's "concerns" over Kirpal, which came in the way of his elevation as the High Court Judge.
In the midst of the Collegium deferring his elevation four times, Kirpal was designated as a senior advocate in a decision taken unanimously by all 31 judges of the Delhi High Court, on March 19.
Kirpal himself hinted at the possible reason last year, when he referred to an Intelligence Bureau report – which he did not have access to – indicating some problem with his partner. (as revealed in his interview to The Week). Kirpal's partner is a foreign national – a Swiss human rights activist, Nicolas Germain Bachmann. He had told The Week: "If I were a straight person, and had I been married, there would have been no such problem. Justice Vivian Bose of the Supreme Court had an English wife. Foreign Minister S. Jaishankar has a Japanese wife. Why is it a problem for me other than the fact that I am a gay man who cannot get married to his partner? I would very much like to, the moment this country permits it. But in the absence of the ability to get married, there is no other explanation for me than that this is because of my alternative sexuality. The court has given me no other reason and the media reports stand unrebutted …."
The Supreme Court's Collegium's approval of Kirpal's elevation on Monday shows that the Collegium has at last been able to overcome its previous inhibitions, which clearly suggested unlawful discrimination on the ground of Kirpal's sexual orientation. The discrimination clearly led to a delay of three years in his elevation, and the consequent loss of seniority owing to the delay in the appointment as a Judge of the High Court.
Saurabh Kirpal is the son of the former Chief Justice of India, B.N. Kirpal, who held office from May 6, 2002 to November 7, 2002. Chief Justice Kirpal was appointed to the Supreme Court as a Judge on November 9, 1995.
Saurabh Kirpal has edited a collection of essays, 'Sex and the Supreme Court: How the Law is Upholding the Dignity of the Indian Citizen' on the judgments passed by the apex court on issues ranging from sexual autonomy, gender rights and privacy. He was also one of the lead counsels for the petitioners in the landmark Navtej Singh Johar case before the Supreme Court in 2018.
Justice Edwin Cameron of the Constitutional Court of South Africa too was openly gay like Saurabh Kirpal, and was instrumental in securing in the South African Constitution the inclusion of an express prohibition on discrimination on the basis of sexual orientation. Like Kirpal, Cameron too was appointed as a Judge, despite his open disclosure regarding his sexual orientation.
It is possible that the Supreme Court Collegium's decision to finally approve Kirpal's elevation was inspired by the South African precedent.
Cameron had contracted HIV in the 1980s, and became extremely ill with AIDS when working as a High Court judge. His realisation that he owed his life to his relative wealth, which helped him to afford anti-retroviral treatment, made him to become a prominent HIV/AIDS activist in post-apartheid South Africa, urging its government to provide treatment to all. He became the only public official in South Africa to state publicly that he was living with HIV/AIDS.
Kirpal's elevation as the Judge of the Delhi High Court is also a pointer to how the Supreme Court's Collegium finally realized that its continued hesitation on elevating Kirpal as a Judge could amount to discrimination under Article 15(1) of the Constitution of India.
As originally understood, the bar under Article 15(1) would not apply if discrimination on the basis of sexual orientation happened in combination with other discriminatory factors. As scholar Kalpana Kannabiran stated in her book, 'Tools of Justice: Non-discrimination and the Indian Constitution', this exemplified the disaggregative norm of interpretation based on a reductionist reading of the constitutional fragment: 'on grounds only of sex, caste, language, place of birth or any of them' (emphasis added).
Thus, as early as 1951, in the Mahadeb Jiew case, as Kannabiran demonstrates, the Calcutta High Court did not hold that there was no discrimination, but that since proprietary considerations were superadded to sex in this case, it did not constitute discrimination on grounds of sex alone.
Kannabiran argues in her book that the phrase 'or any of them' might have a meaning distinct from 'only'. While in legal usage the word 'only' in this context denotes 'solely', and this was the way it had been interpreted by courts in India earlier, there is no discussion, either in the constituent assembly or in case law, on the concluding phrase of this clause 'or any of them'.
Opening this clause out and re-examining its import points us in a different direction, she says, namely, the State shall not discriminate solely on the listed grounds, and on any of the listed grounds – in the singular or plural, and on grounds of any of the listed indices with factors that do not figure in this list – factors that allude to the larger context. The specific conjunction of sex with any other factors or listed grounds that are alleged to result in discrimination based on sex, then, must be examined by the courts, she says in her book.
In other words, the word 'only' need not drive a wedge between sex and gender if it is read harmoniously with 'or any of them', because this would open up the possibility of reading sex either alone or in conjunction with other factors drawn from the social context in which sex operates, she adds. These other factors may be religion, race, caste, language, place of birth (each of which combines with sex to produce specific forms of discrimination) or they may be the medium through which the discrimination is transmitted (property, 'conditions of service', decorum, and modesty), she explains. Kannabiran, therefore, suggests radical constitutional interpretation rooted in constitutional morality, and strengthened by equal representation within the judiciary at all levels along all axes, that will open out rich possibilities for an intersectional jurisprudence on non-discrimination as the norm in India.
The dictum in Mahadeb Jiew held the field for several decades till the Supreme Court adopted Kannabiran's view in Navtej Singh Johar in 2018. The Supreme Court held in this case that the formalistic interpretation of Article 15 – as upheld in Mahadeb Jiew – would render the constitutional guarantee against discrimination meaningless.
Kirpal's sexual orientation and the fact that his partner is a foreign national were impliedly used by the Centre and the Supreme Court's collegium to delay his elevation for three years on the ground that discrimination on the basis of sex plus another ground (which may or may not be listed under Article 15(1)) would make him ineligible for protection under Article 15(1).
In Navtej Singh Johar, the Supreme Court rejected this contention because it would result in giving endorsement to stereotypical notions which could be used to justify discrimination. Sex discrimination, by nature, is intersectional, and therefore, cannot be said to operate in isolation of other identities, especially from the socio-political and economic context, the court held in this case. For example, a rule that people under six feet would not be employed in the army would be able to stand an attack on its disproportionate impact on women if it was maintained that the discrimination is on the basis of sex and height. (Paragraph 388).
The Supreme Court clearly held in Johar that if any ground of discrimination, whether direct or indirect, is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex.
Justice D.Y. Chandrachud, who was one of the authors in Johar, applied the same reasoning later that year, while upholding the right of women to worship at Sabarimala.
In its Naz Foundation judgment, the Delhi High court introduced the ground of 'sexual orientation' as an analogous ground under Article 15(1), challenging the view that Article 15(1)'s five grounds are exhaustive – a view which was upheld by the Supreme Court later.
“Sex discrimination, by nature, is intersectional, and therefore, cannot be said to operate in isolation of other identities, especially from the socio-political and economic context, the court held in Navtej Singh Johar.
Is it fair to infer discrimination in the Supreme Court Collegium's delaying Kirpal's elevation as the Judge of the Delhi High Court? It would appear so, as Justice Ravi S. Dhawan, who held the office of the chief justice of the Patna High Court from 2000 to 2004, was married to a citizen of the United States, who retained her American passport. Yet, he was not considered ineligible for the high office.
The Collegium, in looking for a precedent for its decision on Kirpal, might have relied earlier on an erroneous instance of a highly regarded senior advocate, who was denied a judgeship because her spouse is not Indian.
Last year, the United States Supreme Court, in Bostock vs. Clayton County, held in a 6:3 decision that an employer violates Title VII when it intentionally fires an employee based in part on sex. Gerald Bostock was a gay man from the state of Georgia, who was fired from his job in 2013. The words "sex" and "sexual orientation" and sex and "transgender status" are inextricably intertwined, the U.S. Supreme Court found in the case.
Justice Neil Gorsuch, a conservative Judge, who authored the majority opinion in this case, conceded that homosexality and transgender status are distinct concepts from sex, but added that discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.
In Bostock, the U.S.Supreme Court decided in favour of LGBTQI rights, because it helped to preserve its highest public confidence. Monday's decision by the Collegium of the Indian Supreme Court in elevating Kirpal as Judge of the Delhi High Court will likewise enhance its credibility in the coming days.
(V.Venkatesan is the editor of The Leaflet. He has more than three decades of experience in journalism, and has extensively reported and commented on legal issues. The views expressed are personal.)